Peter Frank
New York State DEC
Division of Lands and Forests
625 Broadway
Albany, NY 12233
Re. Comment on draft Commissioner’s Policy: Forest Preserve Work Plans
Dear Mr. Frank,
While DEC’s Draft Forest Preserve Work Plan Policy contains good logic and structure, and addresses key constitutionally required questions to be answered in Forest Preserve work plans, there are also serious gaps and policy weaknesses in the draft that over time could seriously harm Forest Preserve integrity. Adirondack Wild: Friends of the Forest Preserve has the following substantive concerns and specific improvements to the policy to recommend.
Policy, Bringing Facilities and Improvements into Compliance, page 1: In addition to requiring written work plans for construction, modification or expansion of new facilities and improvements, and for ordinary maintenance, DEC should also require written work plans to bring facilities and improvements which have been allowed to exceed State Land Master Plan (APSLMP) guidelines and Unit Management Plans into compliance. For example, the Wild Forest snowmobile trail that passes Rock Lake between Indian Lake and Blue Mountain Lake was widened to exceed APSLMP and UMP guidelines and DEC’s own Wild Forest trail policy decades ago and it continues to be inappropriately maintained at that dimension by administrative personnel.
Since the 2003 APA-DEC Memorandum of Understanding (MOU) concerning Implementation of the State Land Master Plan has been in effect (readopted in 2010), all facilities and improvements alleged to have violated the APSLMP or UMP have been given, or ought to have been given a tracking number consistent with the MOU . These and all subsequently investigated violations and all subsequent compliance agreements to resolve the violations ought to be subject to work plans under this policy.
Also, the 2021 Court of Appeals placed an entirely new class of facilities and improvements, namely Class II snowmobile community connectors, on this list because the Court ruled this entire class of trails – on paper and as built – unconstitutional. Written work plans for the restoration of these unconstitutional facilities must be incorporated within this policy to comply with the Court’s decision.
This work plan policy, following consultation with the APA, should state that no work of any type, ordinary maintenance or otherwise, ought to be allowed on such APSLMP non-compliant or unconstitutional structures and improvements unless such work includes specific steps needed to bring the improvements into compliance with the APSLMP or Article XIV, NYS constitution.
Article XIV Considerations, page 3: DEC properly begins its policy by examining the May 2021 decision of the NYS Court of Appeals, or COA. That ruling precipitated and necessitated the revision of this work plan policy. Therefore, it is important to quote from the Court’s decision accurately. Unfortunately, DEC’s Draft Policy does not.
DEC’s draft policy begins its examination by stating “In 2021 the Court of Appeals held that ‘erection and maintenance of proper facilities for the use by the public which did not call for the removal of the timber to any material degree,’ is constitutionally permissible.” Where does that language exist? We cannot find it in the 13-page COA ruling of 2021. The question of “materiality” of tree cutting emerged as a guideline from the 1930 COA ruling in McDonald v. the Association for the Protection of the Adirondacks. It is not explicitly stated by the COA in 2021. DEC should accurately quote the Court.
We suggest that DEC could accurately quote from the 2021 Court of Appeals here: “the construction of the Class II (snowmobile) trails is, for constitutional purposes, no different than the construction of the bobsleigh run. Both would work a substantial change to the Forest Preserve;” or here, “the Class II (snowmobile) trails require greater interference with the natural development of the Forest Preserve than is necessary to accommodate hikers;” or here: “the destruction or removal of trees represented a principal threat recognized by the 1894 Convention delegates, and violation of the prohibition against the destruction of timber is a violation of the forever wild clause, because that prohibition was a means to the ultimate objective of protecting the forest as wilderness.”
The 2021 Court also stated that “contrary to the Appellate division, we do not interpret the provision as a bifurcated clause,” or, in other words, both sentences of Article XIV, Section 1 must be read and understood together. A legal reading of the second sentence could result in unconstitutional rulings on the basis of materiality of cutting, on the basis of their commercial exploitation, or on the basis of loss of wilderness values. A legal reading of the first sentence could result in an unconstitutional ruling on a development, such as mechanized construction and use, as interfering with the “forever kept as wild forest lands” commitment even when no tree cutting occurs, or as the 2021 Court stated, as interfering with the “natural development of the Forest Preserve.”
The three Article XIV questions posed on pages 3-4 as being necessary for work planning pose their own difficulties for DEC. We are glad they are being asked but are perplexed that questions 2 and 3 imply that the DEC has determined “permissible thresholds” to judge the impacts to wild character of the Forest Preserve or to ascertain the degree of alteration of its terrain. In fact, the draft states on page 4 that “there may be mitigating factors that help determine whether or not the impacts associated with each question exceed permissible thresholds.” What are these permissible thresholds? This policy ought not to speak of permissible thresholds of constitutionality of DEC facilities and improvements without specifying what they are.
Lacking clear, definable, permissible thresholds, DEC should desist from using the terms “permissible” and “threshold”, and instead pose questions on pages 3-4 which are more in keeping with the actual language of the Court of Appeals ruling, such as:
- Does the activity require greater interference with the natural development
of the Forest Preserve than is necessary to accommodate hikers? - Does the facility or improvement provide for access and enjoyment of the Forest Preserve as a wild forest, and not as something else, such as local park or commercial campground?
- Does the activity cause a substantial change to the Forest Preserve, or interfere with the constitutional purpose of preserving the area as wild forest land?
Purpose and Background, Achieving Desired Conditions, page 3: The draft lists five necessary and legitimate purposes for work planning. However, missing from the list are these additional, very necessary purposes of Forest Preserve work planning:
- To identify standards, appropriate to measure achievement of desired conditions. Without standards, parameters or indices to represent desired conditions, DEC cannot measure the achievement or loss of those conditions;
- To establish a baseline and long-term plan to monitor standards and desired conditions. Without that baseline and plan to monitor, DEC will not know when results are being achieved or when management actions need be taken to improve or restore conditions.
Purpose and Background, State Land Master Plan and Desired Conditions, page 2: The Draft states that work plans “provide an analysis of the impacts of a particular management action within the confines of the above noted statutes, rules and regulations” including the Adirondack and Catskill Park State Land Master Plans. However, what follows offers no guidance about how the Parks’ SLMP classifications and legal guidelines for management and use intersect with actual work planning, at a conceptual and practical level.
For work plans within Wilderness (Primitive, Canoe), it would be helpful to DEC and other staff to incorporate basic, site relevant SLMP Wilderness definitions and guidelines within the desired conditions of the work plan itself. For example, “achieving and perpetuating a natural plant and animal community where man’s influence is not apparent” is both a basic SLMP Wilderness guideline and a desired condition for projects taking place in Wilderness, Primitive or Canoe areas. Similarly, “blending all conforming structures and improvements with the surrounding environment and to require only minimal maintenance,” and to ensure that all interior facilities “will be designed to emphasize the self-sufficiency of the user to assume a high degree of responsibility for environmentally-sound use of such areas and for his or her own health, safety and welfare” are desired conditions of work planning within areas to be managed as Wilderness or as Wild Forest.
Definitions, Front-country/Back-country, page 4: The draft states on page 4 that “more intensively developed structures and improvements are generally more appropriate—and have less of an impact on wild forest character—when located in front-country settings rather than in back-country areas.” What is the meaning and definition of front-country and back-country settings? The State Land Master Plan and the Unit Management Plans, as well as the DEC-APA Memorandum of Understanding do not use or define these terms. It is all Forest Preserve, all subject to the SLMP classifications and guidelines for management and use. DEC should immediately drop use of the arbitrary, undefined terms “front-country and back-country” Forest Preserve.
Work Plan Sections: Inclusion of Monitoring, pages 5-10: Absent from the list of the sections of the work plan on pages 5-10 is the SLMP requirement for monitoring and assessing carrying capacity, which needs to be incorporated. We suggest the following:
Description of the monitoring plan to measure achievement of the desired conditions.
· Provide a plan to monitor, over time, any changes in the standards used to measure achievement of the desired conditions.
· Provide a baseline assessment of the standards as they currently exist and the expected level of those standards when the desired conditions are achieved.
Applicable Standards for Accessibility by People with Disabilities, page 8: The paragraph on page 8 is poorly and inaccurately written because it is wide open as an argument to make alterations in any land classification area, including Wilderness, Primitive and Canoe areas. Exemptions from the ADA requirements are not just limited to, as stated in the Draft, “situations where terrain and other factors make compliance impracticable,” but also to instances where compliance would require a fundamental alteration to the wild forest character, including but not limited to wilderness. From the federal court consent order it signed in 2001, DEC knows that the ADA and universal access goals do not require DEC to fundamentally alter its program of State Land management conducted in compliance with the classifications and guidelines of the Adirondack and Catskill Park State Land Master Plans. DEC attorneys and commissioners have signed off on this clear understanding with the Adirondack Park Agency, with the National Park Service, and with the federal court in Albany. This paragraph must be re-written to reflect the fact that the ADA does not impose universal access requirements that would result in a fundamental alteration of DEC’s Forest Preserve management program.
Ordinary Maintenance Work Plans, page 10: We strongly disagree with the DEC’s draft which exempts activities included in stewardship agreements with the Department from work plan requirements under this policy. Over many years, work done on the Forest Preserve under signed DEC Memoranda of Understanding, Temporary Revocable Permit, Adopt a Natural Resource, and Conservation Agreements have been poorly overseen and resulted in instances of illegal, non-SLMP compliant widening, modification, or even excavation of trail treads and alteration of the Forest Preserve extending beyond the trail tread. Some of those incidents ended up in court orders and settlement agreements. Once those non-compliant modifications were made, they are then routinely and annually maintained to remain noncompliant year in and year out. DEC’s exemption of work done under such agreements is highly inappropriate, and most inconsistent with the APSLMP. Those carrying out DEC AANR and other agreements are administrative personnel of the DEC, subject to all appropriate APSLMP guidelines for management and use. Work plans should be required. Rather than subject cooperating individuals and organizations to separate, duplicative work specifications, this work plan procedure should be the standard and applied universally to all AANR, CA and other stewardship agreements.
On page 11, Ordinary Maintenance Activities Requiring Work Plans, Maintenance of primitive trails, trail structures and lean-tos, the first bullet is not a sentence. “That” should be removed. The other bullets add instructional information or modifies the first sentence. Also, maintenance of “scenic vistas” should make explicit that the work plan applies to roadside scenic vistas only, not to Wild Forest scenic vistas. Opening scenic vistas on Wild Forest trails is not APSLMP compliant.
Responsibility, page 4: The first sentence on page 4 reads “It shall be the responsibility of all relevant Department divisions and staff to implement the guidelines and procedures of this policy,” and goes on in that vein. Over the years, members of the Division of Operations and Division of the Forest Rangers, among others, have had a hand in facility improvements and modifications, in carrying out their division responsibilities in most cases. In some of those cases, however, the improvements and modifications were conducted without coordination with or oversight from the Division of Lands and Forests and, in some cases, were not APSLMP compliant. This policy must be more specific about needed steps taken for all DEC divisions to ensure that “all Department staff involved in construction and maintenance projects in the Forest Preserve will ensure that all work is authorized and carried out in accordance with the approved Work Plan.”
Best Monitoring Practice, page 4: We urge DEC to include another clause in the second paragraph of page 4, underlined below, such that “The Regional Program Manager shall ensure such work plans are in compliance with UMPs (as applicable); that current best management practices are utilized; that any associated impacts on the environment are avoided, minimized, and mitigated; and that best monitoring practices are established and utilized.
Climate Impacts: This draft needs to comply with The 2019 NYS Climate Act, or the Climate Leadership and Community Protection Act (CLCPA). CLCPA requires in Section 7 that all state agencies consider whether permit or administrative decisions like this work plan policy “are inconsistent with, or interfere with the attainment of the state’s stated greenhouse gas emission limits.” This work plan must take this section of the law into consideration.
Section 9 of the CLCPA is especially relevant to this policy in stating that the DEC shall “assess the reasonably foreseeable risks of climate change on any proposed projects, taking into account issues such as: sea level rise, tropical and extra-tropical cyclones, storm surges, flooding, wind, changes in average and peak temperatures, changes in average and peak precipitation, public health impacts, and impacts on species and other natural resources.” DEC shall also “identify the most significant climate-related risks, taking into account the probability of occurrence, the magnitude of the potential harm, and the uncertainty of the risk.”
Constructing, modifying or maintaining trail and other outdoor facilities on the Adirondack and Catskill Forest Preserve are encountering rapid, sometimes extreme alterations in temperature and precipitation. The change in New York’s climate and precipitation regimes are already having a large impact on DEC trail crews, for example. This work plan policy will be in effect for decades during which the climate and precipitation regimes will reach even greater extremes. It is just plain common sense, as well as a legal requirement that this work plan policy acknowledge Sections 7 and 9 of the CLCPA and from a planning perspective assess the foreseeable risk of climate change on all Forest Preserve facilities and improvements covered by this policy.
Thank you very much for considering our critique and for taking our suggestions into account during and following the public comment period.
Sincerely,
Dave Gibson, Chad Dawson
David Gibson, Managing Partner & Chad Dawson, Board Director
Adirondack Wild: Friends of the Forest Preserve
P.O. Box 9247, Niskayuna, NY 12309
518-469-4081
www.Adirondackwild.org
Cc: Basil Seggos, DEC Commissioner
Katie Petronis, DEC Deputy Commissioner for Natural Resources
Josh Clague, DEC Forest Preserve Coordinator, Adirondack Park
McCrea Burnham, DEC Forest Preserve Coordinator, Catskill Park
Molly Breslin, DEC Counsel’s Office
Eric Kasza, DEC Lands and Forests
Robert Daly, DEC Lands and Forests
Tate Connor, DEC Lands and Forests
Megan Phillips, APA
Matt McNamara, APA
Chris Cooper, APA